Kerala actor assault case: Prosecution questions judge’s role over memory card controversy
Kerala’s Directorate of Prosecution has advised the state government that trial judge Honey M Varghese was not qualified to pronounce the December 8 verdict in the Kerala actor assault case, arguing that her alleged involvement in the illegal access of a memory card containing key assault visuals created a conflict under Section 479 of the Code of Criminal Procedure and raising questions over judicial impartiality ahead of a possible High Court appeal.
The advice, which forms part of the state’s deliberations on whether and how to challenge the trial court’s acquittal of Malayalam actor Dileep, points to a long‑running dispute over digital evidence: a memory card holding eight video clips of the alleged assault that was found to have a changed hash value while in court custody.
Background: High-profile assault case and split verdict
The Kerala actor assault case dates back to February 2017, when a prominent female Malayalam actor reported that she had been abducted and sexually assaulted inside a moving vehicle near Kochi. A series of arrests followed, including that of driver Sunil Kumar, known as “Pulsar” Suni, who was identified as the prime accused.
On December 8, 2023, after an eight‑year trial, Additional Sessions Judge Honey M Varghese of the Ernakulam Special Court for the trial of cases relating to atrocities and sexual violence against women and children delivered the much‑anticipated verdict. Six accused, including Pulsar Suni, were found guilty of gang rape and other offences and were sentenced to 20 years of rigorous imprisonment.
Actor Dileep, a major figure in the Malayalam film industry who had been charged with criminal conspiracy and sexual assault, was acquitted. The court held that the prosecution had failed to establish beyond reasonable doubt that he conspired to commit the crime, a conclusion strongly contested by the prosecution and the survivor.
The split outcome — conviction of six accused and acquittal of Dileep — has since become the focus of legal and public debate in Kerala, with both the survivor and the prosecution indicating their intention to challenge the acquittal in the Kerala High Court.
Prosecution questions judge’s qualification under CrPC Section 479
In its legal advice to the state government on the next steps, Kerala’s Directorate of Prosecution has argued that Judge Honey M Varghese was not qualified to hear or decide the case in light of allegations surrounding the illegal access of the memory card containing the assault visuals. The advice cites Section 479 of the Code of Criminal Procedure (CrPC), which bars a judge or magistrate from trying a case in which they are personally interested or are themselves a party.
According to the prosecution, while Judge Honey was not a party in the main actor assault case, her alleged involvement — described as at least supervisory — in events connected to the suspected illegal access of the memory card disqualified her from presiding over the trial when those allegations became known.
The prosecution contends that the trial court devoted considerable space in its more than 1,700‑page judgement to allegations against the court itself, without, in its view, arriving at a clear conclusion on how and why the memory card’s hash value changed.
This position was reinforced by a written note from advocate Aja Kumar, who served as Special Public Prosecutor in the case. His note forms part of the material now under consideration by the Kerala government as it prepares its appellate strategy.
Memory card at the centre of a digital evidence dispute
The memory card, which contained eight video clips documenting the alleged assault, reached the trial court’s custody in February 2017, within days of the crime. The device became a crucial piece of digital evidence, with its integrity central to both the prosecution’s case and the survivor’s concerns over privacy and potential leakage of the visuals.
According to the prosecution, forensic examinations later found that the memory card had been accessed illegally three times while under court custody, including once in Judge Honey’s courtroom. These findings led the survivor to file multiple petitions before the Kerala High Court seeking a change of judge, citing apprehension over the handling of the sensitive digital material. The High Court, however, dismissed those pleas and allowed the trial to continue before the same judge.
When the judgement was finally delivered, one of its most detailed sections — spanning more than 80 pages — examined the sequence of forensic analyses conducted on the memory card by the Forensic Science Laboratory (FSL) and other experts. The court concluded that while the overall hash value of the memory card had changed, the individual hash values of the eight video files themselves remained unchanged.
On this basis, the judgement “simplistically rationalises”, in the prosecution’s words, that the content of the visuals was not compromised or altered while in court custody. The court did not, however, provide a definitive explanation in the judgement for why or how the card’s master hash value changed, a gap that has become central to the prosecution’s criticism.
Forensic expert’s account vs trial court’s findings
A key figure in the digital evidence trail is Dr Sunil S P, the forensic expert who created the forensic image of the memory card. According to prosecution materials, Dr Sunil has stated that during an examination on January 10, 2020, he detected a change in the memory card’s hash value and immediately informed the Presiding Officer — Judge Honey — over the phone the same day.
Acting on what he says were her oral instructions, Dr Sunil then conducted a second examination on January 29, 2020. He subsequently submitted two reports to the court: one reflecting the initial findings and another capturing the results of the follow‑up analysis.
In its judgement, however, the trial court implies that no such phone call was received from the expert. The judge also questioned why a second forensic examination was carried out on January 29 without a written order from the court, treating this as a factor undermining the reliability of the expert’s testimony.
Legal observers note that this divergence between the forensic expert’s account and the court’s reconstruction of events has become one of the main points of contention. While the prosecution maintains that the court was alerted to a change in hash value as early as January 2020, the judgement associates the allegations with developments much later, including whistleblower statements and a subsequent move by the investigating officer to reopen the probe.
Debate over ‘tampering’ versus ‘illegal access’
Another dispute centres on the legal framing of what happened to the memory card. Throughout the proceedings, the prosecution’s emphasis was on “illegal access” — the possibility that someone viewed or copied the videos without authorisation while the device was in court custody. The judgement, however, focused more on the question of “tampering”, namely whether the content of the digital files had been altered.
The trial court ultimately held that there was no evidence of tampering, pointing to the unchanged hash values of the eight individual video clips. It concluded that the visuals remained safe in court custody, even as it acknowledged that the overall hash of the memory card had changed.
The prosecution has criticised this reasoning as sidestepping its core allegation. In its view, the absence of file‑level tampering does not rule out unauthorised viewing or copying, and a change in the card‑level hash should have prompted a more thorough inquiry into possible illegal access rather than being treated as inconsequential.
The judgement reiterates that the visuals were safe because no tampering of individual files was detected, but offers no detailed explanation for why the memory card’s master hash value changed, the prosecution notes in its advice.
Whistleblower revelations, police move, and the defence narrative
The memory card controversy resurfaced in public discourse after revelations by filmmaker and former Dileep associate Balachandrakumar. His statements, made public in late 2021, alleged conversations involving Dileep and others about the assault case, prompting the investigating officer, DySP Baiju Paulose, to seek permission in January 2022 to reopen the investigation.
According to the judgement, the investigating officer seized certain Forensic Science Laboratory reports in January 2022 and claimed that a confidential court document was found on Dileep’s phone. The officer argued that this suggested an attempt to accuse the court of leaking the assault visuals or other sensitive material.
The defence has consistently maintained that Dileep was framed. During the trial, his lawyers advanced a theory that the actor became a target of a conspiracy allegedly involving the investigating officer, another senior police official, and a politician. They argued that subsequent steps, including the reopening of the investigation and the focus on the memory card, were part of an effort to falsely implicate him.
The trial court’s reasoning on the memory card and related issues is largely in line with the defence position. It views the belated focus on the FSL reports and the confidential document as aligned with an attempt to mount allegations against the court itself, rather than as proof of systemic lapses in handling evidence.
Legal framework: Section 479 CrPC and concerns over impartiality
Section 479 of the Code of Criminal Procedure prohibits judges and magistrates from trying or committing for trial any case in which they are personally interested or where they are themselves a party. The provision is designed to safeguard the principle of nemo judex in causa sua — that no one should be a judge in their own cause.
The Directorate of Prosecution’s advice to the Kerala government hinges on how this provision should be interpreted when serious allegations are raised about the court’s own handling of critical evidence. While the section has typically been invoked in situations involving financial or personal stakes, legal experts point out that modern jurisprudence has also considered perceived bias and institutional conflicts as grounds for recusal in some circumstances.
Supporters of the prosecution’s view argue that once questions emerged over whether the memory card was accessed illegally within the court premises, and especially after a forensic expert allegedly alerted the presiding judge to a hash change, it would have been prudent for the case to be reassigned to avoid any appearance of conflict.
Others, however, caution that recusal is a serious step and that judges must not be pressured to step aside purely on the basis of allegations made by one side in a highly polarised case. They note that the Kerala High Court’s earlier refusal to change the judge, despite petitions from the survivor, indicates that the higher judiciary had considered and rejected the argument of perceived bias at the time.
What lies ahead: Appeal and broader implications
The Kerala government is now weighing its options on appealing the acquittal and raising questions over the trial court process, including the handling of the memory card and the applicability of Section 479 CrPC. Any appeal filed in the Kerala High Court is expected to scrutinise both factual findings and procedural decisions, including the rejection of earlier pleas to change the presiding judge.
Legal practitioners say the High Court will have to balance competing concerns: the protection of a survivor’s privacy and the integrity of digital evidence, the need to preserve public confidence in the judiciary, and the rights of the accused to a fair trial free of undue influence or retrospective second‑guessing of judicial conduct.
Whatever course the appellate court takes, the memory card controversy has already highlighted the challenges Indian courts face in managing sensitive electronic evidence and in addressing allegations that touch upon the courts themselves. The outcome of the appeal is likely to shape not only the future of the high‑profile actor assault case, but also ongoing debates over judicial accountability, digital forensics, and the handling of sexual‑violence cases in India’s criminal justice system.
